Opinion: The not-so-representative "representative" jury

The jury trial: a constitutionalized right in Canada for some criminal charges. Protected under sections 11(d) and 11(f) of the Charter of Rights and Freedoms, the jury trial is meant to be a fair, public hearing to determine whether an accused is guilty or not guilty of a crime. The jury must be impartial and independent. To be impartial and independent, the jury must be representative of the community.

The Supreme Court of Canada ("SCC") decision in R v Kokopenace, 2015 SCC 28 considered what "representativeness" requires. The SCC judges were not unanimous in their decision, with serious criticism arising from the minority.

You may be surprised to learn that the majority of the SCC decided that the "petit jury" (the actual 12 person jury hearing the trial) does not need to be representative of the community. Instead, what is required is that the process used to create the jury roll (the ultimate list of potential jurors for the entire year) be representative - not that the actual jury roll itself be representative - just the process by which the jury roll was created.

The SCC decided that "representative" does not mean that the jury roll should mirror what a random sample from the community would look like. The jury roll does not need to reflect the true demographics of a community. A jury roll may even unintentionally exclude an entire segment of the population and still not be found to be constitutionally defective.

What does this mean? Well, for Mr. Kokopenace, an Indigenous man who had lived on reserve, it meant that the jury roll was created using such outdated and incorrect information that 4 First Nations within the catchment area were not sent jury notices at all. For Mr. Kokopenace, this meant that 32 First Nations were sent jury notices based on contact information from 8 years earlier. (How many times has your contact information changed over the last 8 years?) For Mr. Kokopenace, this meant that of 175 jury panelists that were used to select the petit jury, only 8 of the panelists were on-reserve Indigenous persons. For Mr. Kokopenace, this meant that not a single on-reserve resident was selected to sit on his petit jury. Despite all of this, the SCC found that Mr. Kokopenace has suffered no violation of his constitutionally protected Charter right to a representative, fair, impartial and independent jury trial.

The majority of the SCC decided that only the bare minimum is required - namely, that the state must not deliberately exclude a particular subset of the population. However, "a failure to make reasonable efforts" for a small portion of the population will not undermine the overall representativeness. What does this really mean? This means that the government need only make reasonable efforts to obtain a cross-section of the majority of the population for the jury roll - essentially, undermining the entire purpose of the Charter of Rights and Freedoms to protect the rights of all - not just the majority.

The majority in Kokopenace goes on to say that an accused ought to challenge the representativeness of the jury roll at the outset of the trial so as to not waste judicial resources. However, despite this requirement, the majority held that the Crown does not need to provide pre-trial disclosure about the province's efforts to meets its representativeness obligation. Disclosure must only be made if the accused has satisfied the trial judge that there is an evidentiary foundation for a concern about the representativeness

The take away: an accused person is neither entitled to a proportionately representative petit jury, nor a proportionately representative jury roll, nor even a proportionately representative process for creating the jury roll.

The minority of the SCC in Kokopenace argued that the majority was "oppos[ing] efforts to adapt the jury selection process to guard against racism in jury selection" - I couldn't agree more. What we're left with after Kokopenace is a significantly flawed system that allows racism to permeate throughout a constitutionalized right.

For any minority accused, it is best to think long and hard about whether or not to exercise the right to a jury.